Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy (13 page)

In his conclusion, Wilson struck a resonant note. Johnson, he admitted, “deserves the censure and condemnation of every well-disposed citizen,” and “we must condemn him.” But Wilson denied that political considerations alone could support the impeachment: “Political unfitness and incapacity must be tried at the ballot box, not in the high court of impeachment.”

The most frustrating feature of the exchange between the majority and the minority reports is the problem that has confounded impeachment scholars and lawyers ever since: the tenacious opacity of the phrase “high crimes and misdemeanors.” The phrase was drawn from English impeachment precedents, but even after extended study those precedents prove incomplete, slippery, and contradictory. Each side found support in them. The American precedents supported the majority’s position that impeachment did not require an actual crime, but Wilson framed important practical considerations that appealed to the politicians in the House of Representatives. If impeachment is entirely political, what is the stopping point? If a president and his policies are unpopular, is that enough to impeach him? If you do that today to a president you do not like, will your opponents do it tomorrow to a president you do like?

The majority report was a dud.
Harper’s Weekly
sniffed that it did not “inspire general confidence,” while even the Radical
Chicago Tribune
disparaged its charges as “inferential and circumstantial.” The
Tribune
suggested that any trial covering “the score and more of accusations” against Johnson would last at least until the elections in the fall of 1868. With some glee, the
New York Times
called the report “a whitewashing” of the president, clearing him of the persistent rumors that he had conspired with Jefferson Davis and John Wilkes Booth. One Republican congressman recalled that “much of the evidence seemed irrelevant, and that which bore directly upon the question of the president’s offenses fell far below the serious character assigned to it by previous rumors.”

The impeachment effort did not seem to alarm the president. At his next Cabinet meeting, the discussion of impeachment centered on legislation proposed by Stevens to suspend Johnson for the period between a House vote approving an impeachment resolution and the completion of a trial in the Senate. The notion of suspending the president during the impeachment process had been afoot for some time. Johnson was on record denying Congress’s power to do so, and his position was plainly correct. At the end of the Constitutional Convention of 1787, two delegates proposed that an official who had been impeached by the House should be suspended from office until tried by the Senate. The Convention rejected the proposal by a wide margin. General Grant assured the president that the army would obey his orders if Congress tried to arrest him before the end of a Senate trial. The Cabinet, including Grant, advised Johnson not to comply with any attempt to suspend him. Though Stevens continued to endorse the suspension legislation, it was never adopted.

On the eve of the House vote, the president did his customary best to enrage his opponents. Johnson’s annual message to Congress defiantly challenged that body. His first sentence angrily described the “continued disorganization of the Union, to which the President has so often called the attention of Congress.” Though he had hoped for reconciliation after the war, he wrote, none had occurred, a failure for which he assumed no responsibility. In apocalyptic tones, he announced, “[C]andor compels me to declare at this time there is no Union.” So much for binding up the wounds.

Averting his eyes from the pandemic racial violence in the South, Johnson argued for immediate withdrawal of federal troops and the return of complete power to the Southern states. He attacked Negro suffrage as forcing Southerners to “degrade themselves by subjection to the negro race.” The American republic, he declared, was “the glory of white men.” To avoid having “the inferior obtain the ascendancy” over whites, Johnson rejected any effort to “Africanize” the South, which would inevitably leave it a barren wilderness.

Then the president got to the nub of the matter. How far would he go in opposing Congress? Johnson said he had “deliberated much” on the question. In such highly charged times, he observed, his opposition to Congress could “produce violent collision,” which would be “simply civil war.” Although civil war should be avoided, if possible, the president insisted that he might be “compelled to stand on his rights, and maintain them, regardless of consequences.” Not exactly oil on troubled waters.

This time, the president’s provocative and racist rhetoric failed to unite Republicans against him. Even his implicit threat of armed resistance to Congress could not muster a majority for the impeachment resolution. The telling consideration for most congressmen was the one trumpeted by Chairman Wilson: the impeachers did not claim that Johnson had committed a crime.

On December 5, crowds again jammed the House galleries, this time to hear the impeachment debate. The seats reserved for diplomats and for ladies were full. Equal numbers of blacks and whites filled the gentlemen’s galleries. For the difficult assignment of justifying the impeachment resolution, the impeachers turned to Representative George Boutwell of Massachusetts. Having started his political life in the temperance movement, Boutwell brought a Puritan austerity to his labors. Small, bearded, and mostly self-educated, he had been governor of Massachusetts as a Democrat, the first commissioner of internal revenue during the Civil War, and a member of the Joint Committee of Fifteen on reconstruction. He was recognized as a man of “cool temperament, thoroughly honest mind, and sober judgment.” He could be long-winded, though, having earned the sobriquet “Steady Wind Blowing Aft.”

Boutwell’s prim exterior cloaked a violent passion to depose Andrew Johnson. In a magazine article the year before, he pronounced that the president “conspires with the traitors in the loyal States and the Rebels of the disloyal states for the humiliation, the degradation, the political enslavement of the loyal people of the country.” A young French doctor living in New York, Georges Clemenceau, who would be France’s prime minister during World War I, was transfixed by this American political brawl. According to Clemenceau, Boutwell was “too much a fanatic” to win his case, but also was “too honest and sincere for his opinions to be ignored by his party.” Over the next six months, the Massachusetts congressman would be a mainstay of the impeachment effort.

Saddled with a majority report that repelled more support than it attracted, Boutwell made one of the best speeches of the impeachment season. In an oration of over two hours, delivered on consecutive days, he struck a sober, restrained tone. After paying tribute to Johnson’s “talents and courage in a bad cause,” Boutwell rejected the legal argument pressed by Chairman Wilson’s minority report. If Wilson was right that impeachment was available only for indictable crimes, Boutwell said, the resolution must fail. But he insisted that impeachment can remove from office those who fail the public trust, not solely criminals.

In addition to the usual recitation of English and American impeachment cases, Boutwell urged that the demands of government compelled his view. What if the president denied the legitimacy of Congress and ignored its enactments (positions that Johnson had flirted with for almost two years)? Congress must be able to remove him from office even if he violates no criminal statute. Any other view, he said, “is virtually the end of the Government.”

When Boutwell turned to the factual allegations against the president, he confessed that he labored under great difficulties. He did not dwell on any specific incident, but listed the major actions of Johnson’s tenure: constituting Southern state governments in 1865, suspending loyalty oaths in some situations, his Washington’s Birthday speech in 1866, his many vetoes of legislation, his return of confiscated land and railroads to former rebels. These were all “tributary offenses,” Boutwell continued, that supported his “great crime”: “the restoration of the rebels to power under and in the Government of the country.” In conclusion, he emphasized Johnson’s failures as a leader. Two years after the nation emerged from war, “distracted, torn, and bleeding,” millions of former rebels were “still bold, defiant, aggressive,” while the freedmen faced constant danger. Boutwell demanded Johnson’s removal not for any crime, but because he was unfit to be president.

Rep. George Boutwell of Massachusetts, Radical Republican and ardent impeachment advocate.

Knowing that the impeachment resolution was a goner, Chairman Wilson spoke for only half as long. In a disingenuous opening, he denied “the slightest importance” to the question whether an impeachable offense had to be a crime. Wilson then pressed a spirited challenge on precisely that question, pointing out that although a purely political impeachment might give Boutwell the result he wanted, “can he not see that it may return to plague him?” Did Boutwell wish to give such an impeachment power to his opponents? The Iowan asked how Congress could define a political offense that warrants impeachment. “Is it,” he inquired, “the doing of something that the dominant party in the country does not like?” Wilson called Johnson “the worst of Presidents,” but repeated that he should be punished through “the suffrages of the people.” Wilson closed with more questions, practical ones:

No one else spoke on the merits of the resolution. After considerable squabbling, the impeachers succeeded in having a roll call vote on the resolution. On December 7, the House voted. “Yes” votes came from only dedicated Radicals like Boutwell, Stevens, Ben Butler of Massachusetts, and Ashley of Ohio. During some of the orations, Stevens had reclined on a sofa at the rear of the chamber. Rushing to his seat to cast the final vote for the resolution, he tottered unsteadily. One news account claimed that two-thirds of those voting yes would have gone the other way if their votes had been needed to defeat the measure. With Wilson and John Bingham of Ohio leading moderate and conservative Republicans into the “nay” column, the impeachers failed to command even a majority of Republicans. Fifty-seven voted in favor (all Republicans), 106 opposed (including 68 Republicans), and 22 did not vote.

The resolution’s defeat flowed from its failure to identify an indictable crime. As remembered by Senator John Sherman of Ohio, the House was unwilling to use the “imposing process” of impeachment for “misconduct, immorality, intoxication or neglect of duties.” Other factors played a role, too, such as the timing of the vote. Johnson’s dismissal of Sheridan and Sickles, and his suspension of Stanton, were months in the past. Anger over those actions had cooled.

Presidential politics also split the Republicans. Many eagerly anticipated having Grant as the party’s standard-bearer in the 1868 election. “Grant clubs” around the country supported his presumed candidacy. Two days before Boutwell began his speech, a pro-Grant rally in New York drew a large, enthusiastic crowd. Less than a week after the vote, twenty of the twenty-three members of the Republican National Committee expressed a preference for Grant at the head of the Republican ticket. Some Radicals, though, mistrusted the general, not realizing that the silent Grant truly opposed the president. Radicals who doubted Grant saw impeachment as a way to place Ben Wade of Ohio in the Executive Mansion. Wade might divert the 1868 nomination toward a more reliable Radical, or even seize the nomination himself. That reasoning provoked a contrary feeling among conservative Republicans that it would be better to keep Andrew Johnson in the White House for fifteen more months.

Whatever the reasons for individual votes on the resolution, its crushing defeat had long-term consequences. The House, despite a three-fourths Republican majority, rejected purely political impeachment. The impeachers would have to come up with something that felt more like a criminal offense. Presidential impeachments inevitably contain a healthy dose of politics, but never again would a serious presidential impeachment proceed on the sole basis that the incumbent was not fit for the office. If that argument could not be sustained by the massive Republican majority in December 1867, which detested Andrew Johnson, it would never prevail. This result likely abandoned the initial meaning of the impeachment clauses in 1787, but Boutwell and the majority never effectively answered the practical questions that Wilson raised. How could purely political impeachments be limited? How could such a trial ever end? Wouldn’t it degenerate into a standardless test of political power—in effect, a vote of no confidence—rather than a judgment of fitness to be president?

A day after the impeachment vote, Mrs. Lydia Smith admitted a deputation of Radical leaders to Stevens’s house at 213 B Street. They came to sit with their leader, no matter how decrepit he might seem, and sift through the wreckage of the impeachment drive. Fired by Stevens, the group resolved not to abandon the cause. They would bring up impeachment again and again and again. As a Republican remembered their strategy, “the closest watch would be kept upon every action of the President, and if an apparently justifying cause could be found the project of his removal would be vigorously renewed.” They knew that this president was prone to misadventures, particularly when flush with success. Johnson had been riding high in 1866 when he delivered his disastrous Washington’s Birthday speech, then embarked on his equally disastrous Swing Around the Circle. Johnson might even, after careful deliberation, step squarely into the trap that Stevens had laid for him in the Tenure of Office Act. They would bide their time, even if time was no ally for Stevens.